Paccar Financial Pty Ltd v Menzies; Menzies v Paccar Financial Pty Ltd

The legal principles in relation to adjournments 9Sections 56, 57 58 and 66 of the Civil Procedure Act 2005 relevantly read: "56 Overriding purpose (1) The overriding purpose of this Act and of rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. (2) The court must seek to give effect to the overriding purpose when it exercises any power given to it by this Act or by rules of court and when it interprets any provision of this Act or of any such rule. (3) A party to civil proceedings is under a duty to assist the court to further the overriding purpose and, to that effect, to participate in the processes of the court and to comply with directions and orders of the court. (3A) (Repealed) (4) Each of the following persons must not, by their conduct, cause a party to civil proceedings to be put in breach of a duty identified in subsection (3): (a) any solicitor or barrister representing the party in the proceedings, (b) any person with a relevant interest in the proceedings commenced by the party. (5) The court may take into account any failure to comply with subsection (3) or (4) in exercising a discretion with respect to costs. ... 57 Objects of case management (1) For the purpose of furthering the overriding purpose referred to in section 56 (1), proceedings in any court are to be managed having regard to the following objects: (a) the just determination of the proceedings, (b) the efficient disposal of the business of the court, (c) the efficient use of available judicial and administrative resources, (d) the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties. (2) This Act and any rules of court are to be so construed and applied, and the practice and procedure of the courts are to be so regulated, as best to ensure the attainment of the objects referred to in subsection (1). 58 Court to follow dictates of justice (1) In deciding: (a) whether to make any order or direction for the management of proceedings, including: (i) any order for the amendment of a document, and (ii) any order granting an adjournment or stay of proceedings, and (iii) any other order of a procedural nature, and (iv) any direction under Division 2, and (b) the terms in which any such order or direction is to be made, the court must seek to act in accordance with the dictates of justice. (2) For the purpose of determining what are the dictates of justice in a particular case, the court: (a) must have regard to the provisions of sections 56 and 57, and (b) may have regard to the following matters to the extent to which it considers them relevant: (i) the degree of difficulty or complexity to which the issues in the proceedings give rise, (ii) the degree of expedition with which the respective parties have approached the proceedings, including the degree to which they have been timely in their interlocutory activities, (iii) the degree to which any lack of expedition in approaching the proceedings has arisen from circumstances beyond the control of the respective parties, (iv) the degree to which the respective parties have fulfilled their duties under section 56 (3), (v) the use that any party has made, or could Have made, of any opportunity that has been available to the party in the course of the proceedings, whether under rules of court, the practice of the court or any direction of a procedural nature given in the proceedings, (vi) the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction, (vii) such other matters as the court considers relevant in the circumstances of the case. 66 Adjournment of proceedings (1) Subject to rules of court, the court may at any time and from time to time, by order, adjourn to a specified day any proceedings before it or any aspect of any such proceedings. (2) If a judicial officer is not available at the time appointed for the hearing of any proceedings, a registrar may adjourn, to a later time on the same day or to a later specified day, any matters listed for hearing by the judicial officer at the appointed time." 10In Hamod v State of New South Wales [2011] NSWCA 375, the Court of Appeal reviewed the principles to be considered in deciding whether an adjournment should be granted. The trial judge had refused an adjournment by a self-represented litigant part way through the hearing. The Court of Appeal referred to Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175 and stated "In Aon, the Court was dealing with the rules of the Supreme Court of the ACT, they are similar to those of the Supreme Court of New South Wales. 11Their Honours continued at [139] to [145]: 139 The considerations relevant to the determination of interlocutory applications were recently considered by the High Court in Aon Risk Services Australia Ltd v Australian National University . In Aon Risk Services Australia Ltd, the Court was dealing with the rules of court of the Supreme Court of the ACT. Those rules are relevantly similar to the Civil Procedure Act, s 56 ff. Although the application in question in that case was an application to amend pleadings, the High Court addressed the concerns of case management more generally, noting the impact that substantial delay and wasted costs has on parties, the court and other litigants. Relevant to the application in this case are the comments of French CJ, at [5]: "[T]here is an irreparable element of unfair prejudice in unnecessarily delaying proceedings. Moreover, the time of the court is a publicly funded resource. Inefficiencies in the use of that resource, arising from the vacation or adjournment of trials, are to be taken into account. So too is the need to maintain public confidence in the judicial system." 140 His Honour further stated, at [30]: "Also to be considered is the potential for loss of public confidence in the legal system which arises where a court is seen to accede to applications made without adequate explanation or justification, whether they be for adjournment, for amendments giving rise to adjournment, or for vacation of fixed trial dates resulting in the resetting of interlocutory processes." 141 A just resolution of proceedings remains the paramount purpose of the case management objectives articulated in the relevant procedural provisions of the civil procedure legislation: in particular see the Civil Procedure Act, s 56. What constitutes a " just resolution" is to be understood in light of the purposes and objectives stated in the statutory provisions. Speed and efficiency, in the sense of minimum delay and expense, are seen as essential to a just resolution of proceedings. However, these terms are relative and parties should be given an appropriate opportunity to plead and argue their case. Nonetheless, there are limits to the extent that a party will be accommodated in the conduct of the litigation. In Aon Risk Services Australia Ltd, Gummow, Hayne, Crennan, Kiefel and Bell JJ, at [98], stated: "The Rule's reference to the need to minimise costs implies that an order for costs may not always provide sufficient compensation and therefore achieve a just resolution. It cannot therefore be said that a just resolution requires that a party be permitted to raise any arguable case at any point in the proceedings, on payment of costs." 142 In his submissions to this Court, Mr Hamod made specific reference to these provisions, as well as to s 66. He submitted that his Honour was obliged to apply s 66, subject to s 56, and to then make his determination according to the dictates of justice as required by ss 57-58. Section 66 provides, relevantly, that the court may at any time, by order, adjourn proceedings. 143 There is nothing new in this provision. It merely confers upon the court a discretion to grant an adjournment. The court has always had that power, both in the exercise of its inherent jurisdiction and pursuant to the Supreme Court Act1970. Nor is s 56 a new concept. Rather, it is the statutory embodiment of jurisprudence that had already gained prominence in the case law. Issues of delay, costs and inefficiency have led to active case management in the courts as a recognised feature of the administration of justice for at least the last two decades. 144 Mr Hamod also relied upon ss 57 and 58. Section 57 provides that in furthering the overriding purpose of a just, quick and cheap resolution of case, the court is required to manage cases having regard, inter alia, to " the just determination of the proceedings ": s 57(a). Section 58 provides that in making any order or direction the court is to " seek to act" in accordance with the dictates of justice, including having regard to the " degree of injustice that would be suffered by the respective parties as a consequence of any order or direction ". 145 These provisions have been the subject of frequent judicial comment: Tripple Take Pty Ltd v Clark Rubber Franchising Pty Ltd [2005] NSWSC 1169; Baulderstone Hornibrook Engineering Pty Ltd v Gordian Runoff Ltd [2005] NSWSC 1339; Dennis v Australian Broadcasting Corporation [2008] NSWCA 37; Hans Pet Constructions Pty Ltd v Cassar [2009] NSWCA 230; Bi v Mourad [2010] NSWCA 17 at [47]; Richards v Cornford (No 3) [2010] NSWCA 134; McMahon v John Fairfax Publications Pty Ltd [2010] NSWCA 308. In McMahon v John Fairfax Publications Allsop P, at [26], referred to the case management provisions ss 56-60 as follows: "The operation of the Civil Procedure Act, ss 56-60 has brought about important changes to the conduct of civil litigation in this State. To a significant degree those provisions enshrined many of the developments in case management and the approach to litigation over the previous 20-30 years in this country. They now have statutory form. They are, however, a clear statutory watershed. That statutory form comprises the over-riding purpose: s 56, the fulfilment of which binds the Court (s 56(2)), the parties (s 56(3)) and legal advisers (s 56(4)). That over-riding purpose is the 'just, quick and cheap resolution of the real issues in the proceedings'."

The Court directions and orders 12Both sets of proceedings have been before the Court on at least 18 occasions. I shall briefly refer to the most recent court directions in these proceedings 13On 7 November 2012, the matter came before Davies J who made the following orders: 1. Order the Menzies to file & serve all evidence upon which they rely on or before 20 November 2012. Any evidence not filed by 30 November 2012 cannot be relied upon without leave of Davies J or the trial judge. 2. Order Paccar to serve all evidence in reply on or before 14 December 2012. 3. Both parties to provide discovery in relation to proposed categories (Paccar categories 1, 2, 3, 6 & 7) by 23 November 2012. 4. Paccar to provide Court with submissions re categories nominated by the Menzies by 9 November 2012. 5. Inspection of documents to take place at Hopkins Lawyers, 140 William Street, Melbourne by 7 December 2012. During inspection of Menzies documents the parties are not to be present. 6. Paccar to provide Menzies with name of mechanic and valuer who are to inspect the vehicles by Friday, 9 November 2012. Menzies to provide consent or otherwise by 13 November 2012, such consent not to be unreasonably withheld. 7. Inspection of trucks to take place by 27 November 2012. 8. The Menzies are to file affidavit setting out their financial position should they wish to apply for pro bono assistance (in accordance with r 17.36). 9. Menzies to file NOM if they wish to claim privilege. 10. Proceedings listed for Directions before Davies J at 11:00am on 14 December 2012. 11. Costs of today reserved. 12. Liberty to apply on 2 days notice. 14No affidavit in relation to Order 8 has been filed. 15On 14 December 2012, the matter again came before Davies J who made the following orders and directions: 1. Affidavit of Kristine Hopkins sworn 12 December 2012 filed in Court. 2. Original affidavit of Colleen Menzies sworn 13 December 2012 to be filed in the Registry 3. Menzies to file application as to why leave should be granted to file further evidence - such application to be heard by Davies J at 9:30am on 1 February 2013. 4. Menzies to serve List of Documents by 4pm on 25 January 2013. 5. Paccar to provide discovery in relation to proposed categories B, D, E & F. 6. Menzies to file & serve any NOM to vacate hearing dates & evidence in support by 25 January 2013 - such NOM is to made returnable before Davies J at 9:30am on 1 February 2013. 7. Proceedings listed for Directions & Argument before Davies J at 9:30am on 1 February 2013. 8. Costs reserved. 9. Liberty to apply on 2 days notice. 16On 25 January 2013, the Menzies filed a notice of motion seeking an adjournment. On 1 February 2012, the matter came before Davies J who made the following orders: 1. Menzies' NOM of 15 November 2012 is dismissed with costs. 2. Affidavit of Andrew Philip Brown sworn 13 January 2013 filed in Court. 3. Ex 1 re Menzies application to vacate hearing date - Letter from Mills Oakley to Swaab Attorneys dated 30 January 2013. 4. Menzies NOM filed 25 January 2013 to vacate hearing dates commencing 18 February 2013 granted. 5. Hearing re-listed for 5 days commencing 18 March 2013. 6. Menzies' to pay costs resulting from vacation of February 2013 hearing dates; the costs of the NOM dated and the costs of 14 December 2012. 7. Leave to Menzies to serve remainder of lay evidence by 8 February 2013. 8. Paccar to serve any lay evidence in reply by 4pm on 27 February 2013. 9. Menzies to serve expert report to be relied by 4pm 27 February 2013. 10. Paccar to file expert report in reply by 4pm on 13 March 2013. 11. Experts to confer by no later than 15 March 2013. 12. Liberty to apply on 24 hours notice. 17Hence, the hearing date of 18 February 2013 was vacated and the hearing was set down for five days commencing 18 March 2013. 18On 25 February 2013, the matter came before Garling J who ordered: 1. I order that by 4pm 4/3/13 Mr and Mrs Menzies are to serve on the sols for Paccar Financial P/L copies of all draft affidavits, although in incomplete form, upon which they propose to rely at any hearing of the proceedings. 2. I order that by 4pm 4/3/13 Mr and Mrs Menzies provide to the solicitors for Paccar Financial P/L a list, by deponent and date, of all affidavits upon which they wish to rely in addition to the draft affidavits at the hearing of the matter. 3. I grant leave to all parties to rely on sworn affidavits filed in proceedings between the parties but in other Courts. 4. I order that on or before 10am on 11/3/13 Mr and Mrs Menzies serve on the sols for Paccar Financial P/L all completed and sworn affidavits upon which they propose to rely and which have not been previously notified in their list of affidavits. 5. I order that if Mr and Mrs Menzies wish to apply to the court on 11/3/13 for an order that the hearing date be vacated, that they notify the solicitors for Paccar Financial P/L of any such application by 4pm 7/3/13 and that by that time they serve all evidence and material in support of their application. 6. I order that the Document Examination Experts retained or to be retained by each party, with respect to the principal documents in the proceedings being Deeds of Loan and Charge, Amended Deeds of Loan and Charge, and Guarantees, are to meet jointly and prepare a joint expert report setting out the issues upon which they are agreed and the issues upon which they are disagreed together with an explanation of their reasons for their disagreement by 12 noon on 7/3/13. 7. I order that any joint report be filed with the Court by 4pm 8/3/13. Filing will be sufficient if it is provided to my Associate. 8. I reserve all questions of costs including the costs relating to the joint expert. 19On 6 March 2013, the Menzies' solicitors ceased to act. They have been self-represented as from that date. 20On 11 March 2013, Garling J vacated the hearing date of 18 March 2013 and relisted the matter for hearing on 13 May 2013. This was the second time these proceedings had been listed and the hearing date vacated. The Menzies are seeking that the hearing date be vacated for the third time. 21On 22 March 2013, the matter came before Garling J. His Honour (at T 5, 8, 9 10 and 11) stated: "HIS HONOUR: Mr Menzies, I recall vividly what is going on and the reason I made the orders was so that this case can finally come for hearing in circumstances where the hearing date has been vacated twice and it is time that the Court requires you to put on all of your evidence. The last order was that you had to serve all of your evidence by 11 March. ...This case will go ahead on 13 May. There will be no adjournments. This time has long past. ... and Mr and Mrs Menzies have to get on with doing their evidence. ... Is there any reason why you shouldn't send your documents electronically, those that can be done electronically, being your affidavits, to the other side by 16 April. MENZIES: No, we can do that your Honour. HIS HONOUR: Mr Menzies, I want to make it plain that this is your last chance to get your evidence on. I have been more than accommodating to accommodate the difficulties that you have, but this case is going ahead on 13 May and it is time to make sure that, whatever evidence it is you wish to rely upon is filed in accordance with the directions I am about to give. Do you understand? MR MENZIES: Yes, you Honour." 22From these comments of Garling J, Mr Menzies would have been left in no doubt that the hearing was to proceed on 13 May 2013. 23Garling J made the following orders: 1. Order that Ms Michelle Novotny and Mr Gary Storey prepare and provide to each party a joint report in accordance with the UCPR guidelines with respect to all examinations which have been conducted to date and in respect of all opinions which they have formed to date and that such report be provided to the parties and filed on or before 11/4/13. 2. Order that in the event that no joint expert report is filed, Paccar Financial P/L is to serve any report of any expert document examiner on or before 18/4/13. 3. Order that Mr and Mrs Menzies are to serve by email all affidavits without annexures upon which they intend to rely by 4pm 16/4/13. 4. I order that Mr and Mrs Menzies are to serve by 4pm, 22 April 2013, complete paper copies of all affidavits upon which they intend to rely. 5. I order that, in the absence of compliance with those two orders, Mr and Mrs Menzies not be entitled to rely on any evidence at the hearing of the proceedings which has not been served in accordance with the timetable, except by leave. 6. I order that Paccar file and serve any evidence in reply to the evidence of Mr and Mrs Menzies by 4.pm, 6 May 2013. 7. I reserve all questions of costs. 8. I note that the matter is to proceed to a hearing on 13 May 2013. 24On 7 May 2013, the matter came before Registrar Bradford. The Menzies sought to adjourn the hearing date on 13 May 2013. The Registrar refused the Menzies' adjournment application and confirmed the hearing date of 13 May 2013. 25The Menzies reasons for seeking a further adjournment are that Mr Menzies has been working hard on preparing he and his wife's evidence, he has not yet completed this task and requires more time, he and his wife suffer from medical conditions so they require more time to complete the preparation of their case. Mr Menzies also points out that as Paccar sought that an order for costs made against them be payable on an indemnity basis and payable forthwith in relation to the adjournment application before Garling J, his attention was diverted from preparing for the hearing to preparing submissions on costs. The reason for concentrating on his costs submission was because if a costs order was made payable forthwith, Paccar may commence further bankruptcy proceedings against them. Mr Menzies also requires at this late stage pro bono assistance to complete his affidavit evidence or appear at the hearing. 26The evidence Mr Menzies says that he still needs to address is: (a) Federal Magistrate Court Bankruptcy Matter. - Melbourne; (b) Federal Court Matter Staying the Bankruptcy Matter. - Melbourne; (c) Paccar and their Trustees not abiding by the Stay Order. - Melbourne; (d) The failed contempt of court matter. - Melbourne; (e) The subsequent appeals to the contempt matter. - Melbourne; (f) The Cost Hearing brought by Paccar and the Trustees. - Melbourne; (g) The Appeal to the High Court - Sydney/Melbourne; (h) The hearing of the Menzies' appeal in regard to the Bankruptcy them - Melbourne; (i) The Striking Out of the Default Order Request in the Victoria Magistrate Court before they were Bankrupted. - Upon it - Melbourne; (j) The Setting Aside of the Bankruptcy Notice in the Federal Magistrates Court in Sydney before they were Bankrupted; (k) Mr Menzies has to address the two conflicting Affidavits of Paccar's Jeff Penter and David Mueller; (l) He also has to address the Affidavits of Roland Hollingsworth, Graham Miller, Gillian Harvey and Stephen Brown; (m) He has to justify why the Trucks have not been able to earn money of any Consequence since Paccar turned on the Menzies; (n) Mr Menzies to consider any precedent cases that support them and those that do not at least two in their favour and if there are anywhere a company has done what Paccar have done he would well like to see them; (m) Mr Menzies asked Paccar to tell them what other cases support them and those that support the Menzies but of course, they have not replied. He has been advised that each party must make known to the other side all cases that support each side; and (o) Briefly address Jirsch Sutherland meetings - saying they supported the reinstatement of Menzies Haulage Pty Ltd. 27Mr Menzies' view on what needs to be done should be contrasted with his former solicitor's opinion Mr Sperber that as at 25 January 2013 80 percent of the preparation of the Menzies' affidavits had been completed (Aff, 25/1/13 at [12]). 28Mr Menzies left school at 14 years and I accept that preparing legal documents is difficult for him. Mrs Menzies attends to the typing and production of their documents. 29So far as the medical evidence is concerned, a report of Dr Shane Carney Nephrologist dated 11 May 2013, says: "I first saw Ian Menzies who has Chronic Kidney Disease due to IgA nephropathy confirmed on renal biopsy 1997 at John Hunter Hospital, 02-11-2012. Apart from CKD, he has as a consequence Hypertension and also Gout. There are other concomitant medical conditions which his General Practitioner would be best able to comment on. I last saw him 10-05-2013 and while his renal function is slowly declining he is relatively asymptomatic of that. However his concern that at a later date he may need dialysis or renal transplantation has caused him some anxiety. Furthermore his recurrent gout has been difficult to control so far and caused him further pain and anxiety. He is on medications for gout, hypertension and hyperlipidaemia as well as aspirin. I understand he has chronic depression and I believe that his medical conditions are adversely affecting that." 30The problem with his health, Mr Menzies explained, is that he suffers from painful gout and due to his kidney condition cannot take the most effective medication to relieve his pain. Amongst other things, it causes him to be unable to sleep at times. 31This Court asked Mr Menzies that if an adjournment was granted when would he be ready for trial. He replied, that he would be ready for trial in August except if he has any health problems such as dialysis. However, the medical report of Dr Carney does not say that it is anticipated that Mr Menzies may need to undergo dialysis in the next few months nor does it say that he is unfit to appear at court nor that was unable to prepare his evidence. 32A report dated 10 May 2013 from clinical psychologist, Susan Dempster, was also tendered. Mr Menzies has asked that his wife's condition be kept confidential, so I will not reproduce the contents of that report, although I have taken it into account. Ms Dempster recommends that, in particular that the Menzies should they be required to attend court at this time that the Court give consideration to a change in the hearing date so that adequate time be given for the Menzies to make preparation for their case at a pace that will not further deteriorate their current ill health. This medical evidence does not persuade me that the Menzies were and are unable to prepare their case for hearing and by adjourning the hearing date their health will improve. 33Counsel for Paccar submitted that there was no assurance that if the hearing were adjourned the Menzies would be ready on the next occasion. This is the third application by the Menzies to vacate the hearing date. The difficulty I have is that if I were to grant an adjournment and vacate this hearing date, I am not persuaded that, if a further adjournment were granted, the Menzies would be ready for trial on the next occasion. On several occasions Mr Menzies has told the Court that he will be in a position to serve his evidence by various dates but he had not done so. 34Paccar submitted that the trucks are still idle, the debt owed is around $370,000 plus interest and the amount of the debt exceeds the value of the trucks. Thus, if an adjournment was to be granted it would suffer a greater financial loss. Further, Paccar submitted that Mr Menzies is not legally represented and seeks pro bono assistance is unlikely it will be able to recover legal costs from the Menzies. 35I accept that the Menzies are now not legally represented, and take into account their medical conditions. I also accept the evidence of their former solicitors that 80 percent of their affidavit evidence was prepared as at 25 January 2013. I take into account the hearing date has already been vacated twice and this is the third application to vacate the hearing date. I am not persuaded that if a further adjournment is granted the Menzies will be ready to proceed at a further hearing. I also accept Paccar is suffering prejudice even if it is successful at the hearing and recover and sell the trucks. Paccar may not be able to recover the amount owing to it and its costs that it has expended. There will be a shortfall. After taking all of these factors into account, I refuse to grant the Menzies a further adjournment. The hearing will proceed on the evidence I have before me.

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